Court's message on basic education lost on Legislature

By Peter Callaghan, Columbian Syndicated Columnist

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photoPeter Callaghan covers the state Legislature for The News Tribune in Tacoma. Blog: thenewstribune.com/politics; or Twitter: @CallaghanPeter. Reach him at peter.callaghan@thenewstribune.com.

Someone really needs to tell the Legislature that it lost the court case known as McCleary v. State of Washington.

A unanimous state Supreme Court ruled in January that the state had failed in its constitutional duty to amply fund basic education. And this isn't just any duty, but one the constitution places above all others by calling it the paramount duty. The court even took the rare path of retaining jurisdiction until 2018 by a less-than-unanimous but still-strong 7-2 margin.

Then in July, the court rejected the state's suggestion that the court passively receive an annual report on the state's progress toward finding a permanent and reliable source of money to pay for basic education. Instead, the court adopted a process much closer to that proposed by the education advocates who won the case.

The court wants an annual report on progress toward meeting the court's order. It gives the plaintiffs the right to file comments within a month of receipt of the state's report. And it says the court can order additional reports and fact-finding hearings when the two sides disagree as to what has been accomplished.

Sensing the precedent-setting nature of the decision, the court used polite terms about the importance of co-equal branches of government and legislative prerogatives. Attempts to salve hurt feelings aside, however, the bottom line is that the justices plan to make sure the Legislature does what the court ordered it to do. But the first report, filed with the court on Sept. 17, indicates the Legislature continues to not quite believe that the court is serious. Approved by a bipartisan, eight-member legislative task force, the 36-page report seems an exercise in rearguing the McCleary case. (The resolution that created the task force even declared that the Legislature "does not believe that judicial oversight of its legislative prerogatives is necessary.") The report also suggests the task force is acting voluntarily when it notes, "The Legislature declared its intent to establish a structure and process for the interbranch dialogue requested by this court."

The report is part primer on the history of education funding in Washington, part plea for props for laws passed before the case was resolved (especially 2009's House Bill 2261) and part condescending description of how tough the budget issues have been for the past four years. Most of that is already well known to the court as it was detailed in Justice Debra Stephens' majority opinion in which she also describes HB 2261 as "a promising reform program."

Abrasive attitude

Only two pages detail what has actually been done since the court ruled. There, the task force asks for credit not for what the Legislature did in the 2012 session but for what it did not do – cut even deeper into education funding. "Although progress toward implementation of the ESHB 2261 reforms in the 2011-13 biennium was slow, it was not non-existent, and the incremental funding of these reforms represented a good-faith legislative effort to progress toward these goals in the second consecutive biennium of substantial budget cuts," the report states.

Thomas Ahearne, the Seattle attorney who successfully argued the case, described himself as "less than pleased" with the attitude shown in the report. "They seem to say, 'Golly gee, it's really gonna be hard to do this, so give us some time,'" Ahearne said. "It would be like a burglar telling a judge 'there are still a lot of things I need to buy, so I'm gonna keep stealing, but I promise to slow down.'

"They're stealing from kids," he said. "I don't think they'll actually comply until the Supreme Court forces them to because kids don't vote." Ahearne's clients will respond by Oct. 17.

In a news release, task force leaders admit the "heavy lifting has yet to come" yet take strange solace that the report was adopted unanimously. But getting eight votes is hardly an accomplishment for a report that shows little progress toward implementing McCleary and no agreement on how to pay for it.